Page 303 - Betriebshandbuch ebook Julni2107

Overindebtedness
I/4.3
inno:va Steuerberatungsgesellschaft mbH
Insolvenz
3. Comments to provisions for preservation of capital
The managing director is obliged to call a shareholder's meeting without delay, if - based on financial statements for the fiscal year or based on preliminary financial statements - half of the share capital is lost (§49 (3) GmbH (Limited Liability Companies Act))
Additionally, the managing directors have to ensure that the assets required for the preservation of the share capital may not be paid out neither for the grant of loans to managing directors or e.g. persons authorized with general power of representation (Prokuristen) (§ 43a GmbHG), nor for payments to shareholders.
Please consider the following provisions in particular: § 43a GmbHG, § 49 GmbHG und § 84 GmbHG.
a) Payments to shareholders
The assets required for the preservation of the share capital may not be used for payments to shareholders. This is not applicable if there is a recoverable claim for the refund of the payments. Otherwise, the shareholders have to pay back the prohibited repayments (§§ 30, 31 GmbHG). Under certain conditions the claim can also be demanded from the managing director personally.
In case of a tense liquidity situation it is not allowed to authorize payments to shareholders if these payments cause insolvency. Additionally, if the company is insolvent or overindebted, in order to safeguard the assets under liquidation, the managing director may not make any payments on behalf of the company - except for a few exemptions. (§ 64 GmbHG).
Please consider the following provisions in particular: § 30 GmbHG, § 31 GmbHG and § 64 GmbHG.
b) Particularities concerning a limited liability company, which is a general partner of a limited partnership
Payments effected by a limited partnership to a person who is shareholder of this partnership and its general partner in the form of a limited liability company may in certain cases also be prohibited payments. One precondition is that this payment leads indirectly to a reduction of the share capital of the general partner .
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